State of Ohio v. Carla Clark
No. 19AP-300
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 2, 2021
2021-Ohio-559
BROWN, J.
(C.P.C. No. 17CR-5659) (REGULAR CALENDAR)
Rendered on March 2, 2021
On brief: Dave Yost, Attorney General, Kristin S. Pe, and Ben Karrasch, for appellee.
On brief: Carla Clark, pro se.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{1} Defendant-appellant, Carla Clark, appeals from a judgment of the Franklin County Court of Common Pleas finding her guilty, pursuant to jury verdict, of one count of theft and one count of Medicaid fraud. For the reasons which follow, we affirm.
{2} By indictment filed October 17, 2017, plaintiff-appellee, State of Ohio, charged appellant with one count of grand theft in violation of
{4} Ms. Cooper was a non-verbal quadriplegic who required the use of a feeding tube, a ventilator, and a catheter to survive. Ms. Cooper‘s daughter, Chinella Cooper (“Chinella“), had the primary responsibility for ensuring that her mother received the medical care she needed. In 2015, the state approved Ms. Cooper for 24-hour a day nursing care. Shortly thereafter, appellant contacted Chinella to offer her Caregivers’ home health services. Chinella informed appellant she “was looking for 24-hour care” and appellant told Chinella “she would try and provide [her] with that.” (Tr. Vol. II at 113-14.) Caregivers began providing Ms. Cooper with in-home nursing services.
{5} The Caregivers employees worked individually with Ms. Cooper. Initially, Amanda Brewer worked with Ms. Cooper Monday through Friday from 8:00 a.m. to 4:00 p.m., and Lashara Kornegay worked after Brewer from 4:00 p.m. to 7:30 p.m. Caregivers never provided Ms. Cooper with a nurse to work a third shift overnight. Kornegay eventually left Caregivers and her last shift with Ms. Cooper occurred on May 12, 2015. Carla Edmonds began providing nursing services to Ms. Cooper in June 2015. Brewer left Caregivers on October 12, 2015.
{6} Although Kornegay and Brewer were licensed nurses, Edmonds nursing license was suspended throughout the timeframe specified in the indictment. Edmonds explained at trial that appellant knew Edmonds’ “nursing license wasn‘t active,” but that appellant instructed Edmonds to provide nursing services to Ms. Cooper anyway. The nurses had to fill out nursing notes and timesheets documenting each shift with Ms. Cooper. Appellant instructed Edmonds to put Kornegay‘s name on her nursing notes and timesheets “basically as a cover-up.” (Tr. Vol. II at 193.) Appellant paid Edmonds in cash for the nursing services she provided to Ms. Cooper.
{7} One day Chinella discovered nursing notes in the house from June and July 2015 in Kornegay‘s name, which Chinella knew constituted “incorrect information.” (State‘s Ex. 20; Tr. Vol. II at 124.) Chinella contacted the Ohio Attorney General‘s Office and submitted a complaint regarding Caregivers after she discovered Edmonds’ nursing license was suspended.
{9} Shepherd spoke with appellant during her investigation. Appellant told Shepherd that “she did the billing” at Caregivers and stated that if there were any billing errors they were unintentional. (Tr. Vol. II at 269.) Appellant admitted to Shepherd she “was aware that Ms. Edmonds’ license was suspended” and that Caregivers “did not” provide Ms. Cooper with 24-hour a day nursing care. (Tr. Vol. II at 269-70.) Shepherd determined that from June 2 to November 20, 2015, Caregivers received $63,179.65 from ODM for nursing services which were either never provided to Ms. Cooper or were provided by an unlicensed nurse.
{10} The jury returned verdicts finding appellant guilty of fifth-degree felony theft and fourth-degree felony Medicaid fraud. At the April 18, 2019 sentencing hearing, the trial court determined the convictions merged for purposes of sentencing. The court sentenced appellant to a six-month prison term on the fourth-degree felony Medicaid fraud count and ordered appellant to pay restitution to ODM. The court issued its final judgment entry imposing sentence on April 21, 2019.
[I.] The trial court erred in refusing to dismiss Juror [J.R.] for cause after he asked to be excused because of his trouble dealing with the charges against the Defendant. Juror [J.R.] expressed concerns over his ability to remain unbiased due to his recent interactions with home caregivers during his wife‘s illness and death.
[II.] The trial court erred by allowing the jury to consider prejudicially irrelevant evidence.
[III.] The trial court erred by not allowing a defense witness to testify.
[IV.] The trial court erred by allowing the State Prosecutors to submit an incorrect spreadsheet into evidence.
[V.] The state erred by including technical errors in the indictment.
[VI.] Ineffective assistance of counsel.
[VII.] The trial court erred by sentencing the appellant to prison time.
[VIII.] The trial court erred by interfering with the defense examination strategy.
{12} Appellant‘s first assignment of error asserts the trial court erred by refusing to dismiss Juror J.R. after the juror asked to be excused from the jury. Appellant contends the trial court‘s failure to remove Juror J.R. deprived her of a fair trial.
{13} During voir dire, Juror J.R. informed the prosecutor that prior to his wife‘s death “four years ago,” the juror had “Riverside Hospital, their hospice, Kobacker House, in our home for 16 months, going through that process.” (Voir Dire Tr. at 137.) The prosecutor asked Juror J.R. if he could be fair and impartial in a case involving in-home nursing services, and the juror responded “[a]bsolutely.” (Voir Dire Tr. at 138.) Neither the state nor defense sought to challenge Juror J.R. for cause or use a peremptory strike against him.
{15} The decision to disqualify a juror for bias is a discretionary function of the court, and such determination will not be reversed on appeal absent an abuse of discretion. State v. Orlandi, 10th Dist. No. 05AP-917, 2006-Ohio-6039, ¶ 8, citing Berk v. Matthews, 53 Ohio St.3d 161, 168 (1990); State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 106. See
{16} “A jurors belief in his or her own impartiality is not inherently suspect and may be relied upon by the trial court.” State v. Phillips, 74 Ohio St.3d 72, 89 (1995), citing Smith v. Phillips, 455 U.S. 209, 217 (1982). Accord State v. Jones, 91 Ohio St.3d 335, 338 (2000). As the record demonstrates Juror J.R. affirmed he could be fair and impartial, we find no error, let alone plain error, in the trial court‘s retention of Juror J.R. on the jury.
{17} Appellant‘s first assignment of error is overruled.
{19} State‘s exhibit 14 was a Chase Bank withdrawal slip demonstrating appellant withdrew $45,000 cash from Caregivers’ checking account on October 1, 2015. Appellant was a signatory on Caregivers’ checking account. Before the state sought to introduce state‘s exhibit 14, defense counsel argued that the withdrawal slip was irrelevant. The trial court indicated it would “probably allow it,” but wanted to “wait and see how the defense handles things on your examination of [appellant], if she testifies.” (Tr. Vol. II at 289.) The court told the state not to address the withdrawal slip with Shepherd.
{20} During her direct examination, Shepherd explained that Caregivers received a remittance from United totaling $45,505 on October 1, 2015. Shepherd stated “[p]retty much all” of the $45,505.00 remittance derived from billings related to Ms. Cooper, as only “[a] little over $700” of the $45,505.00 constituted payment for clients other than Ms. Cooper. (Tr. Vol. III at 18.) Shepherd explained that the $45,505.00 remittance was large for Caregivers, noting that Caregivers’ total monthly deposits for May 2015 were $27,527.80. On cross-examination, Shepherd affirmed that the payments from United went to Caregivers as a company and not to appellant individually. Following an inquiry from the state, the court affirmed that the state could address the withdrawal slip with Shepherd during her redirect examination. On redirect, Shepherd identified state‘s exhibit 14 and affirmed that appellant personally received money during the relevant time frame as “[t]here was a withdrawal.” (Tr. Vol. III at 69.)
{21} Appellant asserts that state‘s exhibit 14 was irrelevant and highly prejudicial, as the state failed to establish a link between the $45,000 withdrawal amount and the
{22}
{23} Generally, “all relevant evidence is prejudicial.” State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, ¶ 23. As such, “the rules of evidence do not attempt to bar all prejudicial evidence,” but exclude only “evidence that is unfairly prejudicial.” (Emphasis sic.) Id. “If unfair prejudice simply meant prejudice, anything adverse to a litigant‘s case would be excludable under
{24} To establish theft in violation of
{26} State‘s exhibit 19 was Chinella‘s calendar from 2015 containing her “documentation” of the shifts worked by the medical caregivers. (Tr. Vol. II at 115.) Chinella explained that “[w]hen the nurses would come on a daily basis, [she] would put down the time that they came and the time – the beginning time and the ending time” of the nurses’ shifts on the calendar. (Tr. Vol. II at 114.) Chinella stated she kept the calendar “for [her] record if [she] had to ever refer back to them. And [she] had kept calendars prior to this year because [she] was paying the nurses out of pocket, so [she] needed to keep the hours that they were there so [she] could make sure that [she] paid them correctly.” (Tr. Vol. II at 118.) Ms. Cooper became bedridden following a seizure in 2013, but did not receive Medicaid financial assistance for her care until 2015.
{27} Defense counsel argued the state failed to lay a “proper foundation under [
{28}
Records of regularly conducted activity.
A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
{29} The
{30} In State v. Breckenridge, 10th Dist. No. 05AP-868, 2006-Ohio-5038, this court concluded a father‘s responsibility for ensuring that his “bedridden and severely impaired son” received the “care necessary to keep him alive” would constitute a “calling” for purposes of
{31} Chinella‘s obligation to ensure her mother received the care she needed to survive constituted a calling for purposes of
{32} Appellant contends that there was no authentication of state‘s exhibit 19. Authentication or identification is a condition precedent to admissibility of evidence. State v. Ollison, 10th Dist. No. 16AP-95, 2016-Ohio-8269, ¶ 47. Authentication “is satisfied by
{33} Appellant asserts the trial court erred by admitting state‘s exhibit 19 because Chinella produced the calendar in an untimely manner. Chinella explained at trial that, although she could not find the calendar contained in state‘s exhibit 19 when she first spoke with Shepherd in June 2016, she eventually found the calendar. The evidence demonstrating that Chinella misplaced the calendar for a period of time in 2016 affects the weight, rather than the admissibility, of state‘s exhibit 19. Compare State v. Evans, 10th Dist. No. 01AP-1112, 2002-Ohio-3322, ¶ 87 (stating that “[b]reaks in the chain of custody do not affect the admissibility of evidence but, rather, the weight to be afforded such evidence“). The trial court did not abuse its discretion by finding state‘s exhibit 19 admissible pursuant to
{34} Based on the foregoing, appellant‘s second assignment of error is overruled.
{35} Appellant‘s third assignment of error asserts the trial court erred by excluding the testimony of defense witness Denise Hill. At trial, the state objected to Hill‘s testimony on the basis of relevancy. The prosecutor explained that Hill, who worked for the Area Agency on Aging, would testify that the “last time she had anything documented from CareGivers regarding any questions about United billing” was on “July 21st of 2014 in which CareGivers said they didn‘t know that United was taking over.” (Tr. Vol. II at 290.) Defense counsel argued that Hill‘s testimony was relevant, as it demonstrated appellant‘s confusion concerning the Medicaid billing process. The court stated that Hill‘s testimony regarding a July 2014 conversation with Caregivers was “too far out of the zone,” as appellant had an obligation “to conform to the billing practices and the rules and
{36} Appellant contends that the trial court violated her constitutional right to call witnesses by excluding Hill‘s testimony. The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution provide a criminal defendant with the right to compulsory process to procure the attendance of witnesses in their favor. The right of a criminal defendant to present witnesses on his or her own behalf in order to establish a defense is a fundamental element of due process of law. Taylor v. Illinois, 484 U.S. 400, 409 (1988); Washington v. Texas, 388 U.S. 14, 19 (1967). “The right to compulsory process, however, is not unlimited.” State v. Denis, 117 Ohio App.3d 442, 446 (6th Dist.1997). “The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor at 410. Accord Denis at 446 (holding that “a defendant‘s right to present his own witnesses to establish a defense is prescribed by the rules of evidence“).
{37} As the indictment alleged that appellant committed theft and Medicaid fraud from June 2 through November 20, 2015, the relevance of Hill‘s testimony concerning a July 2014 conversation with Caregivers was negligible. Accordingly, the trial court did not abuse its discretion by finding the probative value of Hill‘s testimony substantially outweighed by the danger of confusion of the issues relevant to the case pursuant to
{38} Appellant‘s third assignment of error is overruled.
{39} Appellant‘s fourth assignment of error asserts the trial court erred by allowing the state to submit an incorrect spreadsheet into evidence. Shepherd explained at trial that she summarized the voluminous records contained in state‘s exhibits 9, 6, 3, and 13 into the spreadsheet contained in state‘s exhibit 21. State‘s exhibit 9 contained remittance advices from United depicting the payments Caregivers received on claims submitted for services allegedly rendered to Ms. Cooper. State‘s exhibit 3 contained Brewer‘s timesheets from June to October 2015, and state‘s exhibit 6 contained Edmonds’
{40} Defense counsel objected to state‘s exhibit 21, arguing that the state failed to satisfy the foundation requirements of
{41}
{42} Appellant asserts that state‘s exhibit 21 “was incorrect and therefore inadmissible” because the spreadsheet did not contain amounts from reconsidered claims. (Appellant‘s brief at 15.) The accuracy of the information contained in state‘s exhibit 21 concerns the weight to be given the exhibit, rather than its admissibility. See B.T. Lazarus & Co. v. Alma Marketing, Inc., 10th Dist. No. 89AP-1350 (June 13, 1991) (stating that the “issue as to the accuracy of the figures” contained in an
{43} Based on the foregoing, appellant‘s fourth assignment of error is overruled.
{44} Appellant‘s fifth assignment of error asserts the state erred by including technical errors in the indictment. Appellant contends that the indictment contained an incorrect value of the alleged theft and mistakenly referred to her as the owner of Caregivers.
{45} “The sufficiency of an indictment is subject to the requirements of
{46} Count 1 of the indictment charged appellant with grand theft, alleging that ”Carla Clark did with purpose to deprive the owner, The Ohio Medicaid Program, of property or services, to wit: monies, knowingly obtain or exert control over either the property or services by deception.” (Emphasis sic.) Count 2 charged appellant with Medicaid fraud, alleging that ”Carla Clark did knowingly make or cause to be made a false or misleading statement or representation for use in obtaining reimbursement from the medicaid program.” (Emphasis sic.) The value of the property alleged to be at issue in both charges was more than $7,500 and less than $150,000.
{47} The indictment complied with
{48} Appellant asserts that the state presented incorrect information to the grand jury to secure the indictment. However, as the indictment is valid, it ” ‘is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.’ ” State v. Davis, 38 Ohio St.3d 361, 365 (1988), quoting U.S. v. Calandra, 414 U.S. 338, 345 (1974). Moreover, there is no evidence in the record regarding the grand jury proceedings and, thus, nothing to support appellant‘s contention that the state presented incorrect information to the grand jury. See State v. Armstrong, 8th Dist. No. 103088, 2016-Ohio-2627, ¶ 42. “Grand jury proceedings are secret” and an accused is generally “not entitled to inspect grand jury transcripts.” State v. Greer, 66 Ohio St.2d 139 (1981), paragraph two of the syllabus.
{49} Based on the foregoing, appellant‘s fifth assignment of error is overruled.
{50} Appellant‘s sixth assignment of error asserts trial counsel provided constitutionally ineffective assistance by revealing critical information to the prosecution prior to trial, failing to send a subpoena until the week prior to trial, and failing to effectively cross-examine Brewer.
{51} A defendant alleging ineffective assistance of counsel must demonstrate that: (1) defense counsel‘s performance was so deficient that he or she was not functioning as the counsel guaranteed under the Sixth Amendment to the United States Constitution, and (2) defense counsel‘s errors prejudiced defendant, depriving him or her of a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. The failure to make either showing defeats a claim of ineffective assistance of counsel. Bradley at 143, citing Strickland at 697.
{52} “Judicial scrutiny of counsel‘s performance must be highly deferential * * * [and a] court must indulge a strong presumption that counsel‘s conduct falls within the
{53} Appellant asserts defense counsel informed the prosecutors prior to trial that the spreadsheet in state‘s exhibit 21 was incorrect and needed to be modified. However, this alleged pre-trial conversation between defense counsel and the prosecutors is not contained in the record. When proof outside the record is ” ‘necessary to support an ineffective assistance claim * * * it is not appropriate for consideration on direct appeal.’ ” State v. Phipps, 10th Dist. No. 13AP-640, 2014-Ohio-2905, ¶ 69, quoting State v. Zupancic, 9th Dist. No. 12CA0065, 2013-Ohio-3072, ¶ 4. See State v. Kennard, 10th Dist. No. 15AP-766, 2016-Ohio-2811, ¶ 24, citing State v. Hillman, 10th Dist. No. 14AP-252, 2014-Ohio-5760, ¶ 57 (stating that “[w]hen allegations of ineffective assistance of counsel hinge on facts outside the record, the proper remedy is a petition for postconviction relief rather than a direct appeal“). Accordingly, appellant‘s contention that defense counsel rendered ineffective assistance by revealing information to the state prior to trial is not an appropriate consideration for direct appeal.
{54} Appellant further asserts that defense counsel sent a subpoena to United “the week prior to trial thereby ineffectively allowing for enough time to receive proof of reconsidered claims and submit this proof into evidence.” (Appellant‘s Brief at 20-21.) There is nothing in the record indicating that United possessed evidence of reconsidered or resubmitted claims regarding Ms. Cooper. The evidence at trial demonstrated only that Shepherd did not find any evidence of resubmitted claims during her investigation. Accordingly, appellant would need proof from outside the record to establish that United possessed evidence of reconsidered claims which it could have produced in response to a
{55} Appellant lastly asserts that defense counsel failed to effectively cross-examine Brewer. Appellant claims defense counsel failed to ask Brewer if Edmonds had informed Brewer that she missed work because she was in Columbus, Ohio trying to reinstate her nursing license. On cross-examination, defense counsel asked Brewer if Edmonds “had actually told you that she was going to Columbus to try to address her problems with the nursing licenses, didn‘t she?” (Tr. Vol. II at 162.) The state objected to the question and the court sustained the objection. See State v. Kean, 10th Dist. No. 17AP-427, 2019-Ohio-1171, ¶ 89 (noting that the “fact that trial counsel was unsuccessful in eliciting inadmissible hearsay testimony does not render counsel‘s performance deficient, nor has appellant demonstrated prejudice from the alleged deficiency“). “The scope of cross-examination clearly falls within trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel.” State v. Boone, 10th Dist. No. 14AP-87, 2015-Ohio-2648, ¶ 66, citing State v. Campbell, 90 Ohio St.3d 320, 339 (2000). Appellant fails to establish that defense counsel‘s cross-examination of Brewer amounted to ineffective assistance of counsel.
{56} Based on the foregoing, appellant‘s sixth assignment of error is overruled.
{57} Appellant‘s seventh assignment of error asserts the trial court erred by sentencing appellant to a six-month term of imprisonment. Appellant contends that the trial court disregarded the sentencing guidelines set forth in
{58} Generally, “[w]here a defendant, convicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction.” State v. Wilson, 41 Ohio St.2d 236 (1975), syllabus. However, because a “person convicted of a felony has a substantial stake in the judgment of conviction which survives the satisfaction of the judgment” an appeal “challenging a felony conviction is not moot even if the entire sentence has been satisfied before the matter is heard on appeal.” State v. Golston, 71 Ohio St.3d 224 (1994), syllabus.
{59} The rationale underlying Golston, however, “does not apply if an appeal solely challenges the length of a sentence rather than the underlying conviction.” State v. Montavon, 10th Dist. No. 12AP-631, 2013-Ohio-2009, ¶ 6, citing Columbus v. Duff, 10th Dist. No. 04AP-901, 2005-Ohio-2299, ¶ 12. Indeed, “if an appellant has already served his sentence and is only questioning the propriety of the sentence, no remedy would have any effect without a reversal of the underlying conviction.” State v. Wooden, 10th Dist. No. 13AP-159, 2013-Ohio-3600, ¶ 8. Thus, “a defendant‘s appeal of a sentence already served is moot,” as a sentence “completed cannot be lessened or negated in any meaningful way.” State v. Marcum, 10th Dist. No. 15AP-421, 2015-Ohio-5237, ¶ 7.
{60} Appellant‘s seventh assignment of error asserts only that the trial court erred in sentencing her to a term of imprisonment. At this time, however, appellant has served the entirety of her six-month prison sentence imposed in April 2019.
{61} Accordingly, appellant‘s seventh assignment of error is rendered moot.
{62} Appellant‘s eighth assignment of error asserts the trial court erred by interfering with the defense‘s examination strategy. Appellant alleges the trial judge elicited unfavorable testimony against appellant and displayed biased behavior by questioning witnesses during trial.
{63}
{64} As
{65} The trial court‘s questions in the present case were phrased in a professional manner and properly sought to clarify ambiguities in the witnesses’ testimonies. For instance, the court asked questions seeking to clarify if United or ODM determined the amount of payment on a claim, the timeline of Edmonds’ disciplinary proceedings before the Ohio Board of Nursing, whether Kornegay was still working at Caregivers when Edmonds signed Kornegay‘s name to the nursing notes, and when Shepherd began her investigation. Defense counsel did not object to any of the court‘s questions.1 The court‘s questions to the witnesses fail to present any indication of judicial bias.
{66} Furthermore, the trial court instructed the jury to not let “anything the court said or did, other than rulings on the law and on what evidence was proper, have any impact upon your deliberations,” and to “attach no special significance to answers that witnesses gave to questions asked by the court.” (Tr. Vol. III at 159.) We presume the jury followed the court‘s instructions. State v. Raglin, 83 Ohio St.3d 253, 264 (1998), citing State v. Goff,
{67} Appellant fails to demonstrate that the court‘s questions amounted to plain error or interfered with defense‘s examination strategy.
{68} Appellant‘s eighth assignment of error is overruled.
{69} Having overruled appellant‘s first, second, third, fourth, fifth, sixth, and eighth assignments of error, and finding appellant‘s seventh assignment of error moot, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and KLATT, J., concur.